Nelson v. Owen, 38 N.C. 175, 3 Ired. Eq. 175 (1844)

June 1844 · Supreme Court of North Carolina

38 N.C. 175, 3 Ired. Eq. 175

AZARIAH NELSON vs. THOMAS W. OWEN & AL.

It is an established rule, that, where an injunction is applied for to stay proeeedings at law on a money bond, the plaintiff must agree to give the defendant a judgment at law and be bound by order to bring no writ of error.

Appeal from an interlocutory order of the Court of Equity of Caswell county, at Spring Term 1841, refusing a motion to dissolve the injunction, which had been granted in the case, and directing it to be continued to the hearing.

This bill states that, in October 1843, the plaintiff purchased a tract of land of the defendant, Owen, containing abont 127 acres, at the price of $300, for which he gave his bond and the other defendant signed it as a witness; that at the time of his purchase one David Brooks was living on the land, and it was agreed between the plaintiff and the defendant, that the latter was to put the former into possession in time to enable him to sow a crop of wheat and that he failed to do so. It further charges that Brooks is still in possession claiming to hold about 30 acres of the land as his own, and refuses to surrender the possession, and that all the buildings are on these thirty acres together with the only spring of water, that the defendant cannot make title to these thirty acres, and without them the land will be of no use to him. It further states that the defendant, Winshad, the witness to the bond, has taken an assignment thereof to himself and has brought an action against him in the County Court of Caswell, and prays he maybe enjoined from prosecuting said suit and that the contract may be rescinded. The defendant admits the sale of the land to the plaintiff, as set forth, and that Brooks was at the time of the sale in possession of about thirty acres, and alleges he was his tenant at will, and that he is still in possession and refuses to surrender it up, claiming to hold it in his own right; admits he cannot make title to those thirty acres, but says that the defendant is not entitled to rescind the contract as the defect in the title was disclosed to him at the time of the bargain, and he accepted a conveyance with this knowledge. He further ac¡rnits that all the buildings on the land and the only spring are on that part claimed by Brooks and still in his possession-The bill is filed the9th of'November 1843, and the answer the 8th of May 1844, up to which time it does notappear that the defendant Owen had taken any steps to put the plaintiff into possession of the land. Upon the coming of the answer, on amotion by the defendant to dissolve the injunction, his Honor refused the motion and continued the injunction to the hearing.

Jforwood and Venable, for the plaintiff.

Kerr, for the defendants.

Nash, J.

This case is now before us upon the interlocutory decree of the Court below, and our onlybusiness is to say whether it is erroneous or not; The power of a Court of chancery to grant injunctions has been long considered as a most useful one — enabling the party applying for it to avail himself of some equitable defence to a recovery at law,,of which he would be deprived by the strict rules of the common law. But it is a power liable to much abuse, as injunctions are generally obtained upon the ex parte statement of the applicant,. and often employed to delay the obtaining of justice at law. To remedy this evil as far as practicable, with ajust regard to the rights of all parties, it has long, been established as a rule-, that, when an injunction is applied for to stay proceedings at law upon a money bond, the plaintiff must agree to= give the defendant a judgment at law, and be bound by order to bring no-writ of error. Anon. I Vernon 120. In this case the injunction originally granted was general, restraining the defendants from proceeding in their suit at law, and in that form it was, by the presiding Judge, continued to the hearing,, and in that form it is now before us and on the same motion-. The defendant, Owen, in his answer admits the material allegations of the complainants’ bill,, and claims the dissolation of the injunction, upon the ground that, if continued the hearing, it can do him no good, as his bill must be dismissed. The ground, upon which it is alleged that the plaintiff can obtain no relief is, that at the time he made his purchase, he was fully apprized of the fact of Brooks’ possession and claim, and with that knowledge accepted a conveyance from the defendant Owen. It is very certain, where a contract is executed by the purchaser taking a conveyance with knowledge of existing defects in the title, he has no claim to the interference of a Court of Equity. Whetherthis defect in the defendant’s title was known to the plaintiff at the time he took his conveyance,Moes not appear, except by the defendant, Owen’s answer- If that was the fact and the case stopt there, the injunction would be disolved; but the plaintiff alleges that a parol agreement accompanied the transaction, whereby the said defendant was bound to put the plaintiff in possession of the land, it being then in the adverse possession of Brooks, and that the said defendant failed to do so, at the time specified, though requested by the plaintiff. This agreement isnot denied by the said defendant, and he expressly admits that Brooks is still in the adverse possession of the land and refuses to give it up. The statute then did not transfer the possession to the plaintiff upon the execution of the conveyance because of the adverse possession, nor can the plaintiff, for the ,same reason, recover the possession from Brooks by an action at law. And the question submitted to us is, whether we will permit the defendants to compel the plaintiff to pay them the full purchase money, when it appeared the plaintiff cannot get into possession of the land, and when the defendant admits he has not done what he agreed he would, and when at the same time he further admits, that he cannot make a good title to the portion of the land on which Brooks is fixed, where the whole of the buildings are, and where is the only spring belonging to the whole tract. Whether the plaintiff will be entitled to the relief he-seeks to have the contract rescinded, or whether it be a case for compensation, and if so to what extent, are questions depending upon the testimony which. may be before the Court upon the final hearing. They cannot be considered now. The bill charges that the defendant Winshed knew of all these facts before he took his transfer, and is therefore a purchaser of the bond with notice. The answer of this defendant admits his knowledge, except as to the inability of Owen to make title. Upon the whole we think it would be contrary to good conscience to suffer the defendant, at this stage of the proceedings, to compel the plaintiff to pay the purchase money.

The interlocutory order of the Court below is affirmed with costs, to be taxed by the master against the defendants.

Fee Curiam, Ordered to be certified accordingly.